U.S. District Court Judge Praises New York Courts’ Efforts to Curb Prosecutorial Misconduct

By Innocence Staff


An op-ed in Saturday’s Wall Street Journal by U.S. District Court Judge Emmet Sullivan celebrated New York’s comprehensive new rule that makes New York the first in the nation to require all of its criminal trial judges to issue so-called “Brady orders” to all prosecutors in every case (named after the 1963 case of Brady v. Maryland).  As Judge Sullivan explains, the landmark administrative order is a critical step in ensuring that prosecutors across the state honor their legal and ethical obligations to turn over all evidence that is favorable to a defendant.

Judge Sullivan, who presided over the trial of former U.S. Senator Ted Stevens—which was marred by prosecutorial misconduct—is one of the prominent judges that has long issued his own individual Brady orders. But soon, as of January 2018, under the new order, all criminal court judges in New York will be mandated to do so.

As Sullivan explains in his op-ed, the purpose of the judge-issued Brady orders is, ultimately, to educate prosecutors on their legal and ethical obligations, to prevent wrongful convictions throughout the state and to provide a mechanism for sanctioning the small minority of prosecutors who deliberately conceal favorable evidence.

Earlier this month, New York’s Chief Administrative Judge issued an order directing all courts to issue “Brady” orders in criminal cases. The Innocence Project lobbied in support of the order, because judicial oversight of discovery was key in holding former Texas prosecutor Ken Anderson in criminal contempt for the misconduct that resulted in Innocence Project client Michael Morton wrongly serving 25 years for the murder of his wife before he was cleared by DNA evidence.

Sullivan wrote the following:

It’s one thing for prosecutors to know they are supposed to follow the law. But it’s far more likely actually to happen when a judge’s order tells them exactly what is expected, and what the consequences are for noncompliance. A Brady order also ensures that prosecutors who commit intentional misconduct can be held accountable. Often it takes years for a wrongly convicted defendant to discover that exculpatory evidence was withheld. By that time, the statute of limitations for bringing disciplinary or criminal charges against the prosecutor may have already expired. If a Brady order is in place, however, the prosecutor can be held in contempt of court or subjected to other judicial sanctions.

Two Travesties of Justice and Not a Single Apology in Sight

Anyone interested in criminal justice knows that our system is broken. Two recent cases out of Louisiana highlight just how broken our system really is.


The first case is about a now-senior citizen named Wilbert Jones, who was released last week from prison after serving 45 years for a rape he didn’t commit. Presidents Nixon, Ford, Carter, Reagan, Bush, Clinton (twice), Bush (twice), Obama (twice) came and went, while this innocent man languished in prison waiting for a miracle to occur.


Mr. Jones was a poor, black teenager in 1972 when he was arrested. He was convicted of abducting a white nurse from a hospital parking lot and raping her, and was sentenced to life without parole. The case against him was weak, resting solely on the nurse’s questionable identification of Mr. Jones made nearly three long months after the rape had occurred.


The prosecutor involved in the case appears to have withheld crucial evidence from the defense, including the identity of another man, accused of a rape in a difference case who better matched the nurse’s description of the suspect. This apparently was not uncommon: the prosecutor in Mr. Jones’ case had a reputation of routinely violating his constitutional obligations to turn over exculpatory evidence to the defense.


It took the Innocence Project New Orleans nearly 15 years to gain Mr. Jones’ freedom. And here’s the kicker. Even though the prosecution has said they will not seek to re-try Mr. Jones, they nonetheless requested that bail be set at $2,000. Even more outrageously, the judge granted the bail motion. Let me repeat: a judge set bail for a 65-year-old man who spent 45 years in prison for a crime he did not commit in a case where the prosecution is not planning to re-try him.



Keeping with the theme of outrageous, last week Kevin Smith was released from a New Orleans jail, after serving nearly eight years without ever having been convicted of a crime. In 2010, Mr. Smith was arrested for a non-violent drug offense and placed in the county jail, where he sat, and sat, and sat some more, awaiting his day in court. His case was delayed because of a hurricane, because of a competency hearing, because of motions and who-knows-what else as lawyers for both sides hemmed and hawed about moving forward with the case. In the meantime, Mr. Smith rejected a plea offer of 10 years, which would have ended his sentence in 2015, and finally filed his own motion to be released, arguing that his constitutional right to a speedy trial had been violated. After his lawyers joined his motion, a judge set Mr. Smith free. He earned the dubious honor of having spent the most time in pre-trial detention for a non-violent offense.


Louisiana has the highest rate of incarceration in the country. It is rife with allegations of corruption and misconduct. It disparately impacts poor people of color. The system is simply not working, and it is time for places like Louisiana to do something about it.


Mr. Jones and Mr. Smith are owed far more than an apology by Louisiana. In the meantime, a mea culpa by the State would be a good start.

This piece also appeared in the Huffington Post.


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Wrongfully Convicted Man Freed After 45 Years Doesn’t Hold a Grudge – He Just Wants Some Gumbo

Can you spot an unethical prosecutor?

Petition claims DNA proves innocence of Virginia man sentenced to 100 years for 1990 rape of 10-year-old girl

Battler for the wrongly convicted will join Wayne County Prosecutor’s Office

Blind Injustice Chapter 8 Solutions

After years of going head to head with Wayne County prosecutors and building a reputation for freeing the wrongfully convicted, criminal defense attorney Valerie Newman is joining the prosecutor’s office.  Newman was asked to help prosecutors get better at what they do and she hopes to prevent wrongful convictions before they happen.

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Evin King becomes the 2121 exoneration in America.

The success of conviction integrity units exonerating innocent inmates proves every county should have one.

Are prosecutors obligated to believe the evidence they present at trial?

By Radley Balko

“You might think that, from an ethical standpoint, prosecutors should believe that the evidence they put in front of juries is actually true and accurate. After all, they’re state employees, paid with public funds, and they’re entrusted with enormous power. At the very least, we should expect them not only to refrain from putting forth evidence they know to be false but also to exercise some due diligence to ensure that everything they tell jurors is true.

As it turns out, that just isn’t the case. 

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New Wrongful Convictions Series “Final Appeal” Premieres on Oxygen Sunday, January 7 at 7/6 central

NYC finalizes $40M settlement with ‘Central Park 5’

For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man. This blog post from 2015 is an important reminder of holding prosecutors accountable.

Is your memory good enough to convict? A suspect’s fate can depend on what an eyewitness remembers, even though we know memory is fallible

Chapter 5 Blind Memory

If a suspect’s fate can depend on what an eyewitness remembers, how do courts deal with the fallibility of memory?

The Innocence Project helps to exonerate individuals who have been wrongfully convicted of a crime they didn’t commit. They’ve reported that eyewitness misidentification is the greatest contributing factor to wrongful convictions.

Karen Newirth is a senior staff attorney at the Innocence Project, working in the strategic litigation unit on eyewitness identification. She says one of the most powerful parts of her job has been “hearing stories of wrongful convictions in the cases where witnesses talk about what it is like to realize that their memories were wrong and that through their testimony they put an innocent person in prison. The system doesn’t help them to sort through what might be a real memory and what might be contamination or an elaboration.”

“When we see eyewitnesses, victims and defendants in highly emotional situations, their memories are just so plastic,” said Julia Shaw, author of “The Memory Illusion” and a psychological scientist and memory expert who testifies in court. “So I wanted to understand how exactly that works.” Shaw set out to see if she could convince participants in a study to adopt the memory of a crime they hadn’t committed. “I’ve had conversations with neuroscientists who essentially argue that the distinction between imagination and memory is mostly meaningless,” she said. “It’s the same neurons doing the same tasks. So the only difference is maybe strength. And if you reinforce something often enough than memories and imagination just pretty much look identical.”

Read the full story here

To hear the results of Shaw’s study, listen to “Court of Memory.” https://embed.radiopublic.com/e?if=memory-motel-WwEYL8&ge=s1!8f0c7722d13ad723abab7a1cde4c5a46088835e8“>here

Quick Clicks

After half a century a state district court Judge Richard Anderson has overturned Wilbert Jones’ 1974 conviction in the abduction and rape of a Baton Rouge nurse, saying “highly favorable” evidence was withheld from the defense. Read the full story here.

An appellate attorney is out of a job after speaking publicly about a lack of funding in a death penalty case — comments that Weber County officials deemed “harmful to the county’s reputation.” Read the full story here.

Judges Ordered to Direct Prosecutors to Turn Over Information Favorable to Defense

All judges who preside over criminal cases in New York state will order prosecutors to disclose information favorable to the defense at least 30 days before a trial on a felony, a change that some legal experts say will dramatically change the way trials are conducted.

“This newly adopted measure will go a long way to help prevent and remedy systemic errors that contribute to wrongful convictions,” Chief Judge Janet DiFiore said in a statement slated to be issued Wednesday.

Read the full story here

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Center on Wrongful Convictions client Kerry Masterson acquitted of 2009 murder

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2,111th Exoneration: Rickey Newman was sentenced to death in a one-day trial. He was exonerated 15 years later by DNA evidence, as well as evidence of another man’s motive. He is the 118th death row exoneration in the Registry.



Daniel Dougherty awarded 3rd trial in 1985 arson deaths of sons


Getting Away with Perjury

How far must prosecutors go to acknowledge a lie by one of their witnesses? Is it enough for the defense to point out the lie on cross-examination? Fascinating and important case. -Steve Drizin



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Innocent, Disabled and Vulnerable: A judge protects an exonerated man from his lawyer.



5 Exonerated in China Based on Mitochondrial DNA Hair Analysis



Tyra Patterson to Be Released From Prison After 23 Years


How you can remember a moment when you weren’t even there

Very good article about how easily and fervently we can come to believe in memories that aren’t real.

Blind Injustice Chapter 5 Blind Memory


Quick Clicks


A prosecutor meets the juvenile lifer he locked up for 40 years – and apologizes



Tyra Patterson to Be Released From Prison After 23 Years


Prosecutors block release of N.J. men whose murder convictions were tossed

Blind Injustice Chapter 2 Blind Denial. What happens when prosecutors cannot admit a mistake has been made?

By S.P. Sullivanssullivan@njadvancemedia.com, NJ Advance Media for NJ.com

PATERSON — Ralph Lee, Sr. saw it as a test from God.

After 24 years waiting for his son’s release from prison, his prayers were about to be answered — until, suddenly, they weren’t.

Ralph Lee, Jr. and another Paterson man, Eric Kelley, were scheduled to be let out on bail Wednesday after a state Superior Court judge, citing DNA evidence raising doubts about their guilt, vacated their convictions.

But an eleventh-hour challenge from the Passaic County Prosecutor’s Office stalled Judge Joseph Portelli’s ruling that Kelley and Lee could be freed on $20,000 bail while awaiting new trials.

Lawyers from the Innocence Project and Centurion Ministries — two legal groups dedicated to freeing the wrongly convicted — called the move a cruel and unnecessary attempt to delay the inevitable.

Prosecutors contend DNA testing from a key piece of evidence, a hat found at the scene of the killing, doesn’t exonerate the pair. They say the two men should be treated like any other defendant facing fresh murder charges and held until trial.

“They don’t want to admit their error: that they have two innocent men in jail,” said Paul Casteleiro, Lee’s attorney.

Read Full story at:


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When Race Tips the Scales in Plea Bargaining


Suffolk DA Thomas Spota, top aide indicted in cover-up


Gov. Brown Signs Bill Allowing Felons To Vote In Jail


Knoops’ Innocence Project to be featured in a TV show


Today, the Knoops’ Innocence project will be featured in a TV show looking at 5 cases the Innocence Project worked on over the course of 5 years. Watch the trailer featuring Knoops’ work here: http://www.knoopsadvocaten.nl/2017/10/23/rtl4-onschuldig/


Blind Injustice: How ‘Tunnel Vision’ Convicts the Innocent


Dean2-Gillispie-1170x809Here is a piece I wrote about the amazing Dean Gillispie, who served 20 years in prison for rapes he didn’t commit. He was recently exonerated. Please take a minute to read about my dear friend, who is an inspiring human being. And then share.

When you can’t find the light that guides you in the cloudy days,

When the stars ain’t shining bright and you feel like you’ve lost your way,

When those candle lights of home burn so very far away,

Well, you’ve got to let your soul shine.